RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 01-02323

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His rank of E-4 be reinstated.

2.    His former Air Force Specialty Code (AFSC) of 3P051 be reinstated.

3.    His Reenlistment Eligibility (RE) code of 4E be changed to  allow  his
reentry.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The punishment of restriction to  base,  driver’s  license  revocation,  and
extra duty was punishment enough.

The applicant states that at the end of his enlistment, he was arrested  for
Driving While Intoxicated (DWI).  As a result, he could  not  reenlist,  his
AFSC was changed to 3P031, and the majority  of  his  college  credits  were
taken away.  Prior to this incident his record was impeccable.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6  December  1995  for  a
period of four years.

On 22 July 1999, the commander notified  the  applicant  of  his  intent  to
impose nonjudicial punishment under  Article  15  of  the  Uniform  Code  of
Military  Justice  (UCMJ)  for  violating  Article  111  (i.e.,  drunken  or
reckless driving) and  Article  92  (i.e.,  failure  to  obey  an  order  or
regulation).  Specifically,  for  physically  controlling  a  vehicle  while
drunk on 10 July 1999, and being derelict in the performance of  his  duties
in that he willfully failed to refrain  from  drinking  alcoholic  beverages
while under the age of 21.  After consulting legal  counsel,  the  applicant
waived his right to a trial by court-martial and  accepted  the  nonjudicial
punishment.   After   considering   the   applicant’s   oral   and   written
submissions, on 30 July 1999, the commander determined that  he  did  commit
one or more of the alleged offenses and imposed the nonjudicial  punishment.
The applicant appealed the punishment; however, his appeal was denied.   The
punishment consisted of reduction to the grade  of  airman,  restriction  to
McConnell AFB for  45  days,  and  45  days  of  extra  duty.  However,  the
reduction below the grade of airman first class (E-3)  was  suspended  until
5 December 1999, at which time it would be remitted without further  action,
unless sooner vacated.

The suspended reduction to airman was vacated on 29 November  1999,  by  the
commander, based on applicant’s intent to deceive  him  by  making  a  false
official statement that he had been in  his  room  alone  from  dusk  on  14
November 1999 through the morning of 15 November 1999.

The applicant  was  released  from  active  duty  on  5  December  1999  and
transferred to the Air Force Reserve under the  provisions  of  AFI  36-3208
(Completion of Required Active Service) and was assigned an RE  code  of  4E
(i.e., Grade is airman first class or below and airman completed 31 or  more
months), with his service characterized  as  honorable.  He  completed  four
years of active service, with  2  months  and  18  days  of  prior  inactive
service.

Applicant’s performance profile follows:

         PERIOD ENDING                 OVERALL EVALUATION

           15 Jul 97                           4
            1 Apr 98                           5
            1 Apr 99                           5

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPWB recommends the application be  denied.  AFPC/DPPPWB  states,  in
part, that at the time of the applicant’s separation, his grade should  have
reflected the grade of airman (E-2) with an effective date  of  29  November
1999, rather than airman first class (E-3), as indicated on  his  separation
certificate.  If the Board voids the Article 15,  the  applicant’s  date  of
rank to senior airman (E-4) was 6 April 1968.

The AFPC/DPPPWB evaluation, with attachments, is at Exhibit C.

AFPC/DPPAC recommends the  application  be  denied.  AFPC/DPPAC  states,  in
part, that a thorough review of the applicant’s personnel  records  surfaced
no evidence that his primary AFSC was downgraded in accordance with AFI  36-
2101.  Therefore, the skill level reflected in item 11 of the  DD  Form  214
should be 3P051, rather than 3P031.

The AFPC/DPPAC evaluation is at Exhibit D.

AFPC/DPPAE recommends the  application  be  denied.  AFPC/DPPAE  states,  in
part, that the applicant’s RE code assigned at the time  of  his  separation
is correct.  However, if the Board recommends the applicant’s  rank  of  E-4
be restored, they recommend changing his RE code to 3K (i.e.,  Reserved  for
use by HQ AFPC or the AFBCMR when no  other  reenlistment  eligibility  code
applies or is appropriate).

The AFPC/DPPAE evaluation, with attachments, is at Exhibit E.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant on 12 October  2001  for  review  and  response  within  30  days.
However, as of this date, no response has been received by this office.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM recommends the  application  be  denied.  AFLSA/JAJM  states,  in
part, that by electing to resolve the allegation in the  nonjudicial  forum,
the applicant placed the responsibility to decide whether he  had  committed
the offenses with his commander.  The commander weighed  all  the  evidence,
including the credibility of the various witnesses, and made  his  decision.
The applicant has failed to demonstrate that a clear injustice  occurred  in
his case and has provided no evidence of a clear error or injustice  related
to the nonjudicial punishment proceedings.  The original punishment  imposed
on  the  applicant  was  lawful  and,  given  the  serious  nature  of   the
misconduct, appropriate for the offenses committed.

The AFLSA/JAJM evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 1 February 2002 for review and response within 30 days.  However,  as  of
this date, no response has been received by this office.

_________________________________________________________________



THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice to warrant amending the applicant’s DD  Form
214, Certificate of Release or Discharge from Active Duty, in  Item  11,  to
reflect Air Force Specialty Code (AFSC) 3P051.  In  this  respect,  we  note
that there is no evidence  that  the  applicant’s  AFSC  was  downgraded  in
accordance in AFI 36-2101, Chapter 4.  In  view  of  this,  the  appropriate
office of the Air Force has recommended the skill level reflected on his  DD
Form 214 be changed to  3P051.   We  agree.   Therefore,  we  recommend  the
applicant’s records be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice to warrant reinstatement of the  applicant’s
former rank of E-4 and upgrade of his RE  code.   We  find  no  evidence  of
error  in  this  case  and  after  thoroughly  reviewing  the  documentation
applicant submitted in support of his appeal,  we  do  not  believe  he  has
suffered from an injustice.  In this respect, we note the following:

      a.    Evidence has not been presented which would lead us  to  believe
that the nonjudicial punishment, initiated on 22 July 1999  and  imposed  on
30 July 1999, was improper.  In cases of this nature, we  are  not  inclined
to disturb the judgments of commanding officers absent a strong  showing  of
abuse of discretionary authority.   We  have  no  such  showing  here.   The
evidence indicates that, during the processing of this  Article  15  action,
the applicant was afforded  every  right  to  which  he  was  entitled.   He
consulted counsel, waived his right to demand trial  by  court-martial,  and
submitted oral and written matters for review  by  the  imposing  commander.
After considering the matters he raised, the commander  determined  that  he
had committed “one or more of the offenses alleged” and imposed  punishment.
 Furthermore, he does not dispute the charges against  him,  only  that  the
resultant punishment was excessive.

      b.    The Secretary of  the  Air  Force  has  statutory  authority  to
promulgate rules and regulations governing the  administration  of  the  Air
Force.  In the exercise of that authority, he has  determined  that  members
separated from the Air Force would be furnished an RE code  predicated  upon
the quality of their service and circumstances of their separation.  At  the
time an RE code is assigned, it reflects the Air  Force  position  regarding
whether or not, or  under  what  circumstances,  the  individual  should  be
allowed to reenlist.  There has been no showing that  the  Secretary  abused
this discretionary authority or that the particular  RE  code  assigned  was
contrary to  the  prevailing  directive.   Furthermore,  the  applicant  was
issued  an  RE  code  that  can  be  waived  for  prior  service  enlistment
consideration, provided he is otherwise qualified.  Whether  or  not  he  is
successful will depend on the needs of the service.  Therefore, we  find  no
basis upon which to recommend favorable consideration  of  his  request  for
reinstatement of his former rank of E-4 and upgrade of his RE code.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that  his  DD  Form  214,  Certificate  of
Release or Discharge from Active Duty, be amended in  Item  11,  to  reflect
Air Force Specialty Code (AFSC) 3P051, rather than 3P031.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  01-02323  in
Executive Session on 14 March 2002, under the provisions of AFI 36-2603:

                  Ms. Peggy E. Gordon, Panel Chair
                  Mr. John E. Pettit, Member
                  Mr. Albert J. Starnes, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Aug 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPWB, dated 6 Sep 01, w/atchs.
    Exhibit D.  Letter, AFPC/DPPAC, dated 18 Sep 01.
      Exhibit E.  Letter, AFPC/DPPAE, dated 5 Oct 01.
      Exhibit F.  Letter, SAF/MRBR, dated 12 Oct 01.
      Exhibit G.  Letter, AFBCMR, dated 31 Oct 01.
      Exhibit H.  Letter, AFLSA/JAJM, dated 22 Jan 02.
      Exhibit I.  Letter, AFBCMR, dated 1 Feb 02.




                                   PEGGY E. GORDON
                                   Panel Chair